likely to be better at appreciating the "real" value of conservation than future governments and is using entrenchment to lock that valuation into the future.
Unfortunately, it can be difficult, if not impossible, to tell whether a government action is preventing a political malfunction in the future or is an intergenerational power grab. One government's policy judgments may simply differ from the next one's. Predictable demographic changes may lead to foreseeable shifts in preferences, but these are hardly political "malfunctions." Governments undoubtedly engage in good faith efforts to lock in policies in order to prevent what they perceive to be political malfunctions in the future, but this is largely indistinguishable from efforts to lock in policy simply for the sake of preventing change. Indeed, this impulse is consistent with the idea that the desirability of entrenchment increases with the variance in policy preferences over time.299 Therefore, despite the theoretical appeal, preventing future political malfunction is not a benefit that justifies entrenchment in the real world because it is too hard to distinguish from a naked attempt to assert preferences into the future.
In conclusion, there are good reasons to worry that governments will not weigh the costs and benefits of entrenchment appropriately.
With the possibility of agency malfunction, government actors may well make promises that generate disproportionate future harm, given the immediate gain. Before offering solutions, however, a prior question remains: How should these costs and benefits be compared intertemporally?
the temporal perspective to adopt when evaluating an entrenching government action.
There is a burgeoning academic literature on the problem of intergenerational equity.30 Typically, this focuses on obligations that current generations owe to the future. For entrenchment, the temporal perspective is reversed: How should today's generations value the preferences of the past? This puts a surprising twist on the problem of intergenerational equity and presents a neat conceptual problem in thinking about how to compare costs and benefits across time.
It is possible to interpret anti-entrenchment rules to mean simply that the law prioritizes the preferences of the present over those of the past. But this proves either too much or too little. Taken literally, it would mean that precommitments could never bind future governments. That is both doctrinally and normatively implausible, as even medium-term contracts would therefore be unenforceable, to name just one consequence. But, taken less than literally, it reveals nothing about how to decide when a precommitment takes too much away from the future.
It is therefore helpful to consider the problem in the more familiar context of the law of wills and trusts. One of the deep theoretical issues animating that area of law is the ability of a testator to control the disposition of her property after her death (dubbed
"dead hand control"'). Gregory Alexander, in evaluating the history of the dead hand in nineteenth-century trust law, described how early theorists objected to dead-hand control on grounds that it restrained alienability. Any restriction imposed on property today reduces people's freedom in the future to do with it what they want. As people grew more sophisticated in their thinking about the problem, however, they began to recognize that limiting dead-hand control actually increased the alienability of property from the perspective of the beneficiary but restricted it from the perspective of the grantor (or settlor). 3 That is, increasing dead-hand control removes power from beneficiaries, but decreasing dead-hand control removes power from the grantor.o' This, of course, is the same fundamental conflict that entrenchment presents: increasing the power of an earlier government to entrench its policies decreases the power of subsequent governments to decide policy for themselves.
300 See note 289.
301 Lewis M. Simes, Public Policy and the Dead Hand 3 (Michigan Law 1955).
302 See Gregory S. Alexander, The Dead Hand and the Law of Trusts in the Nineteenth Century,37 Stan L Rev 1189,1198 (1985).
303 See Hirsch and Wang, 68 Ind L J at 19-20 (cited in note 277).
Over the course of hundreds of years, courts have frequently had to decide, in the context of trusts and estates, whether to uphold a testator's property-use restriction that living beneficiaries want to invalidate." If a testator leaves Blackacre to her heirs so long as no liquor is served on the premises, should that restriction be enforced against a beneficiary who wants to open a wine bar? In its general form, the problem arises whenever a grantor encumbers property to reflect a set of preferences at odds with those of the beneficiaries. A beneficiary might prefer to serve wine, sell the family homestead, spend the corpus of her inheritance, or otherwise use her property in a way that conflicts with what the grantor preferred."' What to do?
One misleading way to view tradeoffs is as a static example where the goal is simply to give the legal entitlement to the party who values it more. In the conflict between testators and beneficiaries, one might be tempted to think that the stronger preference should win out. If it is more important to the testator that a restriction on property remain in place than it is to the beneficiary that the restriction be lifted, then the restriction should be enforced, and otherwise not.6 The grantor may not really have cared about the sale of liquor, and the beneficiary may desperately want to open a bar.
In fact, however, failing to enforce some dead-hand restriction over property has no meaningful effect on the welfare of the testator who is, after all, dead. It is not welfare enhancing to follow the preferences of someone who has no welfare to be enhanced.
Therefore, the problem of dead-hand control cannot be resolved by reference to the relative strength of the particular parties' actual preferences. The living beneficiary has preferences; the dead testator does not.
The utilitarian concern with dead-hand control, then, is the systemic effect on future testators. Indeed, one of the strongest justifications for respecting dead-hand control is an extension of the principal justification for testamentary freedom more broadly: it encourages industry and thrift during life."' If people knew that their wishes for their property would not be enforced after death, then they
304 See, for example, Shapira v Union National Bank, 315 NE2d 825, 832 (Ohio Ct Com Pleas 1974) (upholding a will requiring the beneficiary to marry a Jewish woman); In re Estate of Brown, 528 A2d 752, 755 (Vt 1987) (refusing to terminate a trust despite the wishes of the beneficiaries).
305 Hirsch and Wang, 68 Ind L J at 19 (cited in note 277).
306 Id at 20 ("[A] use restriction is of efficient duration where the marginal benefit to the testator of extending the restriction ... equals the marginal benefit to the beneficiary and to society of terminating the restriction.").
307 Id at 7-8; Josh Tate, Perpetual Trust and the Settlor's Intent, 53 U Kan L Rev 595, 624 (2004) (citing sources).
would have little incentive to accumulate and preserve wealth toward the end of their lives. Testamentary freedom and dead-hand control offset those pressures. By increasing the marginal value of property retained at the time of death, people have an added incentive to accumulate and to save.
This relates directly to the problem of entrenchment. A subsequent government-occupying a position similar to a beneficiary in a testamentary trust-has no opportunity to go back in time to bargain with an earlier government (analogous to the grantor) over the temporal scope of a plan or policy.0 But as the analogy to dead- hand control makes clear, the issue should not be resolved by asking whether the precommitment was worth more to the entrenching government than getting out of the precommitment is worth to the government seeking to escape its restrictions. The concern, instead, is with the systemic effects in the future if governments either can or cannot entrench laws and policies. In other words, the problem should not be viewed ex post, comparing the value of the entrenchment to the original and the subsequent government, but instead ex ante,
focusing on the effect on future governments."
The key is to recognize that every government is simultaneously a present and future government vis-A-vis others in time. That is to say, a government inherits earlier governments' precommitments but benefits from being able to make precommitments of its own. The question, in the abstract, should then be how much power government actors, in general, want to have to control the future, knowing that it means accepting the thick cords of preexisting obligations.o
Framing the question this way might seem to recreate the problem at one higher level of abstraction. When different government actors have different preferences about the ability to bind the future, whose should win, the past's or the present's? In fact, though, this framing suggests some general outline of the limits of
308 This inability to bargain is a central justification for treating wills and testamentary trusts differently than traditional contracts and gratuitous promises. See Richard A. Posner, Gratuitous Promises in Economics and Law,6 J Legal Stud 411,413-14 (1977).
309 Consider Gillette, 78 BU L Rev at 830-31 (cited in note 45) (describing the benefits to current legislators of adhering to past bargains, such as a reputation for reliability that would allow the legislator to exact higher rents); Dana and Koniak, 148 U Pa L Rev at 518 (cited in note 20) ("To deter capture and compromise contracts, it is necessary for the parties to believe at the time the contract is formed that a court would be able to tell whether the contract reflects capture or compromise more than opportunism protection.").
310 This could be framed in terms of some Rawlsian veil of ignorance: If a government did not know whether it was the entrenching or the entrenched government, would it, in the abstract, embrace the enforceability of a particular precommitment? See John Rawls, A Theory of Justice 12 (Belknap 1971). See also Adrian Vermeule, Veil of Ignorance Rules in Constitutional Law, 111 Yale L J 399,399 (2001).
entrenchment, even if precise line drawing will necessarily remain elusive. There is presumably some level of government control over the future that virtually all government actors would want. Every government benefits from the power to enter into some kinds of contracts or issue some amount of debt, even if it means being bound
by predecessors' actions in those regards. More generally, everygovernment actor would like to be able to generate the benefits of inducing third-party reliance, at least where the costs are not too high.
But when are the costs too high?
Trusts and estates is again a useful place to turn to begin to answer the question. Scholars in that field have recognized that there is no "right" answer to the problem of dead-hand control."' Increasing alienability for the settlor decreases it for the beneficiaries. But the law also appears to recognize that the value of dead-hand control decreases over time while its costs inevitably rise.
3 12That is, a testator may care deeply that property remains in the family for the next fifty years, less so for the following fifty, and be relatively indifferent to the
fifty after that. Simultaneously, the interests of beneficiaries in freeingthemselves from dead-hand control increase as the world and people's preferences and expectations change. In the law of trusts, the rule against perpetuities is the awkward compromise designed to address these competing pressures. It sets a temporal limit-admittedly byzantine-on the provisions of a trust.3" As such, it equilibrates the competing interests of settlors and beneficiaries."'
The rule against perpetuities is a rule no modern theory should emulate, but it nevertheless provides a useful outline for viewing the competing pressures in entrenchment.' Interpreting it broadly, it
311 Gregory Alexander refers to the choice as one of "naked preference." Alexander, 37 Stan L Rev at 1193 (cited in note 302), citing Cass Sunstein, Naked Preferences and the Constitution, 84 Colum L Rev 1689 (1984).
312 See, for example, Kirsten Rabe Smolensky, Rights of the Dead, 37 Hofstra L Rev 763, 789-91 (2009) ("[A] decedent's interests (and perhaps the importance of those interests) decrease over time, while the interests of a living person can increase or decrease over time.").
313 For the definitive treatment of this issue and a proposal giving beneficiaries the right to terminate perpetual dynasty trusts, see Jesse Dukeminier and James E. Krier, The Rise of the Perpetual Trust, 50 UCLA L Rev 1303,1327,1341-42 (2003).
314 It is, of course, not a fixed temporal limit, but requires merely that contingent interests either vest or fail within the perpetuities period (twenty-one years from the death of a life in being at the time of the conveyance).
315 Cy pres provides a good example of an ex post de-entrenching mechanism that could also serve as a valuable analogy. See Alberto B. Lopez, A Revaluation of Cy Pres Redux, 78 U Cin L Rev 1307,1310 (2010).
316 It is also a rule in transition. Despite the rule's durability, the American Law Institute has recently adopted a new restatement of donative transfers that quite fundamentally transforms the rule against perpetuities. See Restatement (Third) of Property: Wills and Other Donative Transfers
§ 27.1, comment a (Tentative Draft no 6 2010).
stands as an outer bound on dead-hand control, recognizing that the benefits of restricting the future decrease as time passes, and that the costs inevitably increase. Notice, then, that the competing interests of testators and beneficiaries are not necessarily locked in a zero-sum game. The rule against perpetuities thus aims toward the goal of maximizing the value of alienability-protecting the testator's freedom when it is more valuable to her, but eventually protecting the beneficiaries' control over the property when it becomes more
valuable to them.
The nature of the inquiry in trusts and estates is not whether dead-hand control is permissible, but instead how much dead-hand control to permit. The same is true of entrenchment. As this Article has demonstrated, entrenchment is not static or some singular feature of government actions that either is present or not. Instead, entrenchment exists on a spectrum.3 All government actions are entrenching to some extent. The real inquiry, then, is how much entrenchment to permit.
V. RECALBRATING ENTRENCHMENT PROTECTION
Having identified the ubiquity of entrenchment through private law, the forms it takes and the protections in place, and the costs and benefits that it can create, this Part offers some tentative prescriptions.
It should be apparent from the preceding discussion that no single legal rule can respond adequately to the problem of entrenchment.
The extent to which governments should be allowed to bind the future depends on the benefits the government is trying to create, the costs at stake to the future, and whether political malfunctions are likely to distort how governments compare them. This cannot be assessed in the abstract. Nevertheless, it is possible to develop an overall conceptual framework for evaluating entrenchment, and then to apply it to some particularly contested and evolving areas of law.
A. The Limits of Entrenchment
When are government precommitments too entrenching? That question framed the beginning of this Article, but it can now be restated: What are the precommitments that every government will want the power to make, and what are the policy restrictions that no government should want to inherit?
It is important to have modest expectations about the content of any specific conclusion. One problem is that many government
317 See text accompanying notes 9-10.
decisions are like forks in the road, and each path is entrenching.
Building out infrastructure to a certain capacity is a physically entrenched growth control, but not investing in infrastructure might have an even stronger entrenching effect. Opening a municipal hazardous waste facility might be physically entrenching (for centuries), but forgoing that income stream might impose an equally tight financial straitjacket on the future. Both action and inaction can be entrenching, and building up procedural hurdles and ex ante prohibitions in these situations may not prevent entrenchment, but may instead simply shift it to a different form. It would put a thumb on the scale of inaction instead of action, which can also constrain the future.
A related problem is that the difference between an entrenching government action and a de-entrenching one is often just temporal perspective. A government that incurs pension liabilities shifts payment obligations on to the future. But if a subsequent government seeks to de-entrench those obligations-through bankruptcy or some
other form-that will make it far more difficult for subsequent governments to induce reliance by public employees, presumably translating into some combination of higher wages and less qualified employees. Current discussions of municipal pension liabilities often include an implicit criticism of earlier governments for making unaffordable precommitments. But reversing those precommitments creates its own costs for future governments, whose employment promises are then worth less. There is a damned-if-you-do, damned-if- you-don't aspect to the entrenchment problem in such situations. The only absolute certainty is that, no matter what, governments will continue to guess wrong about the future.
Fundamentally, though, public entrenchment is a problem because of the opportunity for intertemporal cost shifting. As examined in Part IV, a government that simply guesses wrong about the future occupies a position no different from private actors making bad bets."' The need for de-entrenching mechanisms increases with the likelihood that a government is discounting-or even anticipatorily rejecting-the interests of future generations."' Importantly, though, all government actions present that risk to some extent. It is all but impossible to distinguish between a bad guess about the future and a decision that is at least partly the result of ignoring the interests of the future.
318 See text accompanying notes 278-79.
319 See text accompanying notes 264,288, and 290.
The outer limits of entrenchment now begin to take shape. As a first pass, governments' power to preclude subsequent policy changes should be as limited as possible. Private precommitments that are immune from change look functionally equivalent to unrepealable legislation. No matter the strength of a subsequent government's preferences, no matter how badly it wants to change, such private precommitments lock in the preferences of the past. On the other side, every government will want some capacity to induce at least some private reliance. A world without binding contracts or vested rights would be an unappealing legal quicksand of instability and flux. In general, then, de-entrenching mechanisms should be available whenever possible, but should not be too easy for subsequent governments to exercise.
Of course, some government actions cannot be undone, and they are not necessarily inappropriate because of it. Entrenchment through physical destruction is a good example. There are times when governments should permit destruction-and indeed times when they must-and the only choice is between which resource to destroy.
Where de-entrenching tools like eminent domain are not available, ex ante protections should be in place, either prohibiting an entrenching action in the first place or at least imposing significant procedural protections to minimize the risks of political malfunction.
This is not a call for the strongest possible form of anti- entrenchment protection in every case, however. Entrenchment protection itself is not free. Instead, entrenchment should be calibrated to generate the most benefit at the least cost. Conceptually, public precommitments should be enforced to an extent that maximizes their net benefits, bearing in mind both the benefits of reliance and the potential costs imposed on future governments. This implicates a complex interaction between procedural protections and ex post de- entrenching mechanisms.
The lower the likelihood of political failure-either because of procedural protections or because of the local political context-the less the need for substantive entrenchment protection. Indeed, in the absence of any risk of political malfunction, there would be no reason to treat governments differently from private actors. But procedural protections can be very expensive. They consume money, time, and limited voter attention, and even at their most robust will never entirely eliminate the possibility of government decisionmakers discounting or ignoring the future. At the same time, de-entrenching mechanisms preserve future flexibility but impose costs of their own, principally from the diminished ability to generate reliance on government precommitments. Adjusting the strength of de-entrenching tools will determine the extent of those costs.